State view: First Amendment protects transparency in Minnesota’s same-sex marriage fight

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The Minnesota for Marriage coalition is launching an expensive battle for a state constitutional amendment to ban same-sex marriage. In preparation, the coalition is trying to dismantle Minnesota’s political-disclosure laws so funders behind groups like the National Organization for Marriage can wield influence in secret. Disclosure opponents are losing the battle against transparency in the courts. So in Minnesota we are seeing their newest tactic: blatant and preemptive disregard for the law.

The state Campaign Finance Board is responsible for implementing state-disclosure law, which helps to educate voters about the money behind candidates and ballot campaigns. But Minnesota for Marriage has suggested it won’t follow the board’s rules. It claims the board would unlawfully require disclosure, for example, of the membership of any church that contributes to the marriage-amendment campaign — even if those members wanted to donate only to their congregation and not to the marriage campaign.

Such accusations are baseless. If anything, the board is acting too cautiously (perhaps in response to intimidation tactics) in its implementation of Minnesota law. The board says it will require disclosure only of contributions earmarked or solicited for political spending. There’s no risk that a church member who isn’t trying to support the marriage campaign will have her contributions disclosed. To the contrary, experience at the federal level has shown this approach creates a huge loophole; for example, Karl Rove’s Crossroads GPS, a Section 501(c)(4) organization that reported more than $16 million in independent campaign expenditures during the 2010 congressional campaign, disclosed none of its donors because none of its contributions were expressly earmarked for political ads.

Moreover, courts routinely have found that disclosure laws further the values of the First Amendment by educating voters, exposing corruption and promoting open and robust public debate. The Supreme Court, in Citizens United, voted 8-1 in favor of disclosure, explaining that “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”

Faced with this legal consensus, the National Organization for Marriage’s lawyers and other transparency opponents fall back on the claim that donors will be “intimidated” if their financial support is made public. They rely on a Supreme Court case issued at the height of the civil-rights era, which held that the NAACP was not required to disclose its membership lists to the state of Alabama for fear its members would be subject to physical violence if their activities were made public and that civil-rights organizations would be unable to operate as a result.

Proponents and opponents of same-sex marriage certainly are engaged in a heated debate. But it is insulting to claim transparency would leave major campaign donors vulnerable to the violent intimidation tactics civil-rights activists faced in the era of Bull Connor.

To put this in context, remember how these same groups howled about so-called “harassment” when gay-rights advocates called for a boycott of Target over contributions supporting Republican gubernatorial candidate Tom Emmer. But that isn’t harassment. It’s a boycott — one of the time-honored ways in which ordinary people, without access to wealthy corporate treasuries, can organize for change and make sure their voices are heard in the political process.

It’s hard to avoid the irony of the National Organization for Marriage and other activists wrapping themselves in the mantle of the NAACP while disparaging the grass-roots activism of opponents. This hypocrisy is especially unseemly given that boycotts always have been powerful tools for grass-roots advocates on all sides of the political spectrum. Same-sex marriage opponents have boycotted companies as diverse as McDonald’s, Home Depot and Ford Motor Co., to protest corporate contributions to gay-rights organizations or to support same-sex partnerships. And nobody doubts such strategies are protected by the First Amendment.

As Justice Antonin Scalia (no fan of gay marriage) put it in a case where opponents of same-sex marriage unsuccessfully challenged the constitutionality of a Washington state disclosure law: “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”

We may not agree with Justice Scalia about marriage equality. But we surely agree that the stakes are too high — not just for same-sex marriage but for democracy and the First Amendment — to shroud this debate in secrecy.

Mark Ladov serves as counsel for the Democracy Program at the Brennan Center for Justice at the New York Universtiy School of Law, and Mike Dean is the executive director of Common Cause Minnesota. They wrote this for the News Tribune.

Tags: local view, opinion, editorials, minnesota, politics, money